No. 09-11079 ____________________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT ____________________________________________ WILLIAM C. BROWN, Plaintiff-Appellant, v. PROGRESS ENERGY, Defendant-Appellee. ____________________________________________ On Appeal From the United States District Court for the Middle District of Florida, Tampa Division Hon. Richard A. Lazzara, District Judge ____________________________________________ BRIEF OF THE EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AS AMICUS CURIAE IN SUPPORT OF APPELLANT AND REVERSAL ____________________________________________ JAMES L. LEE EQUAL EMPLOYMENT Deputy General Counsel OPPORTUNITY COMMISSION Office of General Counsel LORRAINE C. DAVIS 131 M St. NE, 5th Fl. Acting Associate General Counsel Washington, D.C. 20507 (202) 663-4724 CAROLYN L. WHEELER Annenoel.Occhialino@EEOC.gov Assistant General Counsel ANNE NOEL OCCHIALINO Attorney CERTIFICATE OF INTERESTED PERSONS Amicus Curiae the Equal Employment Opportunity Commission submits this list, pursuant to Eleventh Circuit Rules 26.1-1 and 29-2, of trial judges, attorneys, persons, associations of persons, firms, partnerships, and/or corporations known to have an interest in the outcome of this appeal: - William C. Brown, Plaintiff-Appellant - Lorraine C. Davis, Acting Associate General Counsel, EEOC - Suzanne A. Ennis, Counsel for Defendant-Appellee - Roderick O. Ford, Counsel for Plaintiff-Appellant - Ford & Associates, LLC, law for Plaintiff-Appellant - Hon. Richard A. Lazzara, District Judge - James L. Lee, Deputy General Counsel, EEOC - Anne Noel Occhialino, Attorney, EEOC - Progress Energy, Defendant-Appellee - Thompson, Sizemore, Gonzalez & Hearing - Jennifer Lee Watson, Counsel for Defendant-Appellee - Carolyn L. Wheeler, Assistant General Counsel, EEOC Pursuant to Federal Rules of Appellate Procedure Rule 26.1, Amicus Curiae the Equal Employment Opportunity Commission, as a government entity, is not required to file a corporate disclosure statement. ________________________ Anne Noel Occhialino Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS. . . . . . . . . . . . . . . . . . . . . C-1 TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . ii STATEMENT OF INTEREST. . . . . . . . . . . . . . . . . . . . . . . . . . . 1 STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . 2 STATEMENT OF THE CASE. . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Statement of the Facts. . . . . . . . . . . . . . . . . . . . . 3 B. District Court Decision. . . . . . . . . . . . . . . . . . 11 SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . 13 ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON BROWN'S FAILURE-TO-TRAIN CLAIM. . . . . . . . . . . . . . . 15 II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON BROWN'S CLAIM OF A HOSTILE WORK ENVIRONMENT BASED ON CO-WORKER HARASSMENT. . . . . . . . . . . . . . . . . 18 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30 CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE TABLE OF CITATIONS Cases page(s) Barrow v. Ga. Pac. Corp., 144 Fed. Appx. 54 (11th Cir. Aug. 12, 2005). . . . . . . . . . . . . . . . . . . . . 21 Breda v. Wolf Camera & Video, 222 F.3d 886 (11th Cir. 2000). . . . . . . . .28 Davis v. Town of Lake Park, 245 F.3d 1232 (11th Cir. 2001). . . . . . . . . 15 Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417(11th Cir. 1999). . . . . . . . . . . . . . . . . . 28 *EEOC v. Sunbelt Rentals, 521 F.3d 306 (4th Cir. 2008). . . . . . . . . . . 23 Harrington v. Disney Reg'l Entm't, Inc., 276 Fed. Appx. 863 (11th Cir. Oct. 19, 2007). . . . . . . . . . . . . . . . . . . . . 20 *Harris v. Forklift Systems, 510 U.S. 17 (1993). . . . . . . . . . . . 19,27 Hernandez v. City of Vancouver, 277 Fed. Appx. 666 (9th Cir. 2008). . . . . 24 Lopez v. Metro Life Ins., Co., 930 F.2d 157 (2d Cir. 1991). . . . . . . . . 15 Mack v. St Mobile Aerospace Eng'g, 195 Fed. Appx. 829 (11th Cir. July 31, 2006). . . . . . . . . . . . . . . . . . 16,20,30 McCann v. Tilliman, 526 F.3d 1370 (11th Cir. 2008). . . . . . . . . . . 21,22 Mendoza v. Borden, Inc., 195 F.3d 1238 (11th Cir. 1999). . . . . . . . . 19 Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269 (11th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . 18,28 Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). . . . . . . . . 29 *Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75 (1998). . . . . . 22 *Pafford v. Herman, 148 F.3d 658 (7th Cir. 1998). . . . . . . . . . . . . . 15 Phelan v. Cook County, 463 F.3d 773 (7th Cir. 2006). . . . . . . . . . . . 29 Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902 (11th Cir. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . 25 *Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir. 1997). . . . . . . . . 20 Spriggs v. Diamond Auto Glass, 242 F.3d 179 (4th Cir. 2001). . . . . . . . 19 Standard v A.B.E.L. Servs., Inc., 161 F.3d (11th Cir. 1998). . . . . . 1,15 Thompson v. Potomac Elec. Power Co., 312 F.3d 645 (4th Cir. 2002). . . 15 Statutes 42 U.S.C. § 1981. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,14 42 U.S.C. § 2000e. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 Rules and Regulations 11th Cir. R. 36-2. . . . . . . . . . . . . . . . . . . . . . . . . . . 16,21 Other Authority *EEOC Enforcement Guidance: Race & Color Discrimination, 2 EEOC Compliance Manual § 15-VII (2006). . . . . . . . . . . . 19,22 STATEMENT OF INTEREST The Equal Employment Opportunity Commission was established by Congress to administer, interpret, and enforce Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Although this appeal arises under 42 U.S.C. § 1981, the Commission has an interest in the issues raised here because Title VII and § 1981 utilize the same analytical framework. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). The significant issues raised in this appeal include: (1) whether the failure to train an employee constitutes an adverse action without a showing that the training adversely affected the employee's promotional opportunities and, if that is the standard, whether the plaintiff satisfied it; (2) the relevance of so-called "secondhand" harassment to a claim of co-worker harassment; (3) whether harassment that is not explicitly race-based can contribute to a hostile work environment; and (4) the circumstances under which an employer may be liable for co-worker harassment. Because of the importance of these issues to the effective enforcement of Title VII, the Commission respectfully offers its views to the Court. STATEMENT OF THE ISSUES <1> I. Whether the district court erred in concluding as a matter of law that denying the plaintiff training he needed for promotion did not constitute an adverse action because he eventually received the promotion. II. Whether the court erred in concluding as a matter of law that the co- worker harassment the plaintiff was subjected to was insufficiently severe or pervasive to create an objectively hostile work environment where the harassment included, among other things, being told that his co-worker called him "nigger" behind his back five to six times and once said he wanted to get the plaintiff fired, being denied training needed for promotion, and being singled out for inferior work assignments and treatment. III. Whether the court erred in concluding as a matter of law that the defendant was not liable for any actionable co-worker harassment because the plaintiff did not formally complain about it, although he verbally complained several times to his supervisor, who did nothing. STATEMENT OF THE CASE A. Statement of the Facts <2> Progress Energy hired William Brown on March 11, 2002, as a lineman apprentice in Tarpon Springs, FL. R.30(Brown Aff. ¶ 3) Brown was the only African-American out of five lineman apprentices and five linemen. Id. at ¶ 5. According to the Dictionary of Occupational Titles, it takes between two and four years for an apprentice to become a lineman. Id. at ¶ 4. At Progress Energy, apprentices go through a thirty-six month training phase before they qualify to be linemen, but this training period can vary depending upon an individual's ability and experience, and the average apprentice takes between two and four years to qualify. Id. at ¶¶ 4, 5. Brown heard that some apprentices became linemen in as little as two years, although it could take as long as eight. R.27(Brown Depo. 28) Brown reported to foreman Jeff Harris. R.30(Brown Aff. ¶ 6); R.27(Brown Depo. 10) A senior lineman named Bret Savage was in charge of training the apprentices. R.27(Brown Depo. 25); R.28(Langille Depo. 26) While Savage could be pretty hard on all of the apprentices, he singled out Brown for harassment and on several occasions referred to him as "nigger" behind his back. R.14,Ex.3(Langille Aff. ¶ 6) Specifically, apprentice Robert Langille testified that Savage appeared "prejudiced against [] Brown," singled Brown out and rode him harder than the other apprentices, and referred to Brown as "nigger" on two to three occasions when Savage was angry with Brown, although Langille did not consider "nigger" a racist remark. R.14,Ex.3(Langille Aff. ¶ 6); R.28(Langille Depo. 11, 29) Apprentice Martin Rivera also heard Savage call Brown a "fucking nigger." R.14,Ex.2(Rivera Aff. ¶8)<3> Brown testified that although Savage never directed a racial slur at him, "whenever [Savage] saw me, he singled me out . . . for some kind of demeaning comment or something like that." R.27(Brown Depo. 82) Savage's treatment of Brown was consistent with how he treated David Tim, another African-American apprentice who worked with Savage from 1997 to 2001. R.14,Ex.1(Tim Aff.¶ 7) According to Tim, Savage always spoke to him and other African-American workers in a dismissive and demeaning manner, but not to whites, although Savage was his junior. Id. Savage's mistreatment of Tim continued even after he left Savage's crew. Id. As the senior lineman, Savage exercised significant influence over the other linemen, and he influenced the linemen to "turn against" Brown. R.28(Langille Depo. 26); R.14,Ex.3(Langille Aff. ¶ 6) Savage was particularly friendly with linemen Paul Montenare and John Hatfield; they were known as "The Three Amigos." R.14,Ex.3(Langille Aff. ¶6) According to Langille, the "Three Amigos" "particularly did not appear to like [] Brown" or "want him on the crew." Id. Brown also testified that all three linemen treated him poorly. R.27(Brown Depo. 54-55) Specifically, Montenare "always gave [him] attitude" because he was black, and three times Hatfield asked Brown whether he was going to eat chicken for lunch, and the other linemen laughed. R.27(Brown Depo. 99, 69, 93-94) Brown also heard Savage and Hatfield call Mexican workers "spics and wetbacks." Id. at 70. On five or six occasions, Savage and Montenare made Brown dig holes or ditches while the apprentices watched, and two or three of those times Savage went so far as to push the apprentices out of the way and say, "Let [Brown] dig the hole." Id. at 114-16. Brown complained to the other apprentices, who said "those guys are being pretty hard on you . . . because you're black." Id. at 117. On "a lot" of occasions Savage and Montenare denied Brown training in the hydraulic bucket, which was training Brown needed to qualify as a lineman, but allowed other apprentices to use the bucket. R.27(Brown Depo. 49-50, 100, 112- 13); see also R.28(Langille Depo. 23) (stating that "the other apprentices receive[d] a lot more bucket time than [] Brown," who was the most junior apprentice). Brown explained that how much bucket training an apprentice received depended upon the lineman the apprentice was "paired" with. R.27(Brown Depo. 110). In Brown's case, that was Savage, and "he hardly ever let [Brown] in the bucket." Id. On several occasions, Savage refused to let Brown use the bucket but allowed another apprentice to do so. Id. at 112. Brown also testified that Montenare "would never let [him] in the bucket to do any work. Every time we had to do some kind of work, [Montenare] always" made Brown dig holes while Montenare "would stand there," even though Montenare would dig with other apprentices. Id. at 100-01. Brown estimated that the other apprentices received five to six times the bucket time that he did, and the other apprentices told Brown it was because he was black. Id. at 109, 50. On April 12, 2003, Savage reported Brown for telling Savage to be quiet when Savage told Brown to get out from beneath a pole; Brown testified that Savage reported him because Savage "always had a problem with me because I was black." Id. at 25-27. Similarly, Langille testified that "there was just tension on the crew" against Brown. R.28(Langille Depo. 25) For example, on one occasion Montenare ordered Brown to climb a "back-lot" pole and cut down a wire, which was evidently an unwanted task, as Langille said Montenare did it out of spite. Id. According to Langille, "little things like that [ ] were ongoing" for "months and months . . . . [I]t didn't go unseen . . . that Mr. Brown was definitely" singled out for mistreatment. Id. at 26. On another occasion when Brown was driving, Montenare ordered Brown to drive through a red light and then screamed at him when he refused. R.27(Brown Depo. 95) When Brown complained about it to Harris, who was also African- American, Harris just said, "you guys got to work it out." Id. Brown also testified that he complained to Harris "several times" about Savage's and Montenare's treatment of him, to which Harris just replied, "you guys got to learn to get along." R.27(Brown Depo. 67-68, 72); see also R.30(Brown Aff. ¶ 6) (stating that he "repeatedly complained" to Harris, "who took no action")). When Brown said to Harris, "You know, Jeff, the reason why they're treating me this way is because I'm black," Harris even agreed. R.27(Brown Depo. 68) Brown also complained to Savage about his treatment, but Savage just brushed him off. R.27(Brown Depo. 113) Langille told Brown that he needed to transfer to Seven Springs to get the training he needed, and other workers also told Brown he was being mistreated because of his race and should transfer to Seven Springs to get the training he needed. R.14,Ex.3(Langille Aff. ¶ 7); R.27(Brown Depo. 75)<4> In June 2006, Brown finally took the advice of his co-workers and transferred to Seven Springs to get away from Savage, Montenare, and Hatfield, and to get the training he needed to become a lineman. R.27(Brown Depo. 75-76) In October 2006 - more than four and a half years after he started work as an apprentice - Brown completed his qualifications to be a lineman. Id. at 76. In November 2006 Brown was told that the Tarpon Springs crew was coming to help on a big job. Id. at 130, 77. Brown warned his co-workers that Savage would give him a hard time because "he don't like me because I'm black, period." Id. at 77; R.14,Ex.2(Rivera Aff. ¶ 6) As predicted, Savage showed up and immediately started giving Brown a hard time. R.27(Brown Depo. 79-80) He singled out Brown and started quizzing him about measurements, which was harassing because normally linemen quiz junior apprentices. Id.;R.14, Ex.2(Rivera Aff. ¶ 6) Later that day Brown went up in the bucket to do some work and Savage "started to scream very loudly at [] Brown," accusing him of a safety violation for having failed to put on his gloves. R.14,Ex.2(Rivera Aff. ¶ 7) Brown told Savage that he did not need his gloves on because he was not within "extended reach" of the line wires. R.27(Brown Depo. 83) Another apprentice named Martin Rivera who observed the incident also told Savage that Brown did not need his gloves. R.14,Ex. 2(Rivera Aff. ¶ 7) When Brown finished his work and came down from the bucket, Savage said, "you know, I can make a big deal out of this if I want to." R.27(Brown Depo. 84) A few days later Savage reported Brown for the purported safety violation. Id. at 85. The company investigated and suspended Brown for one day without pay and gave him a written reprimand. Id.; R.27,Ex.4(12/21/06 letter) Brown talked about the situation with another apprentice, James Jankowski, who told Brown that Savage had said, "I'm going to do what I can do to get that nigger fired." R.27(Brown Depo. 93) Brown grieved the discipline and the pay was restored, but the written reprimand remained in his file. R.27,Ex.8(3/23/07 letter) Meanwhile, on December 1, 2006, Brown called the Ethics Hotline to complain about Savage's conduct on November 18, 2006. R.26(Worley Aff. ¶ 8) Progress Energy did an investigation, which included interviewing multiple employees, and determined that the problems between Savage and Brown were not race related. Id. In February 2007 Brown was promoted to lineman.<5> R.27(Brown Depo. 7) In 2007, Brown transferred from Seven Springs to a Distribution Travel Crew based out of Tarpon Springs. R.26(Worley Aff. ¶ 7) He reported to Michael Poole. R.27(Brown Depo. 5-7) Although trucks were always assigned based on seniority, Poole twice assigned new trucks to white linemen with less seniority than Brown. R.28(Langille Depo. 24); R.27(Brown Depo. 47-48, 58) Brown believed this happened because the other linemen were Poole's fishing buddies "and because he was black." R.27(Brown Depo. 49) The other apprentices told Brown that he did not get a new truck because he was black, and "some would laugh, as though the matter was a joke." R.14,Ex.2(Rivera Aff. ¶ 8); R.27(Brown Depo. 51-52) Brown complained to his union representative, but he just told Brown to talk to Poole. R.27(Brown Depo. 48, 57) When Brown talked to Poole, Poole got upset and said, "I could put your ass on the line truck and let you rot for the rest of your career." Id. at 121. Another co-worker made the same threat. Id. at 107.<6> Progress Energy has an employee handbook. R.27,Ex.4(handbook) It allows employees to report harassment to their supervisors or any manager, HR, or the Ethics Hotline. Id. at 2. The policy also requires any supervisor or manager "who become[s] aware of perceived harassment" to "immediately report" it. Id. at 2. On September 10, 2007, Brown filed a complaint alleging a racially hostile work environment and denial of training in violation of 42 U.S.C. § 1981. RE1-8. Both Brown and Progress Energy filed motions for summary judgment, and the district court granted Progress Energy's motion. RE16-29. Brown, who still works for Progress Energy as a lineman on the Distribution Travel Crew, filed an appeal. R.27(Brown Depo. 5) B. District Court Decision: As to the denial-of-training claim, the court ruled that there was no adverse action because Brown received satisfactory evaluations and a timely promotion to lineman. RE20, RE27-28. The court also concluded that Brown could not show that he was treated differently than non-black employees because the apprentices who received more bucket time were less experienced than Brown. RE20, RE28. Therefore, he had failed to establish a prima facie case. Id. Finally, the court found that Brown had failed to establish a factual question as to whether the reason Progress Energy gave for giving the white apprentices more bucket time - that they were less experienced - was a pretext for discrimination. RE20. As to the hostile work environment claim, the court held that although "nigger" is a "severe" slur, the remarks did not constitute an objectively hostile work environment because the slurs were not directed at Brown and were uttered, at most, five or six times over a period of four years. RE24-25. "More importantly," the court said, Brown never reported the slurs, and when Brown called the Ethics Hotline about Savage's conduct on November 18, 2006, the company promptly investigated. RE25. As to Hatfield's comments about eating chicken, the court found these insufficiently severe to constitute a hostile work environment, even when considered in conjunction with the "nigger" slurs. Id. The court also concluded that Brown's claims that he was "required to dig more holes and trenches, was denied equal time in a hydraulic bucket, and was refused the use of the newer white bucket trucks, do not elevate the situation to a hostile work environment" because "[t]here is no evidence that any of the alleged harassment was based on race." RE26. Specifically, the court found that: Brown admitted that other white linemen dug holes; Brown was denied bucket training because he was more experienced than other apprentices; there was no company policy regarding the assignment of trucks, and Poole just gave out the new trucks to his friends and "fishing buddies," which was permissible because § 1981 does not prevent favoritism unrelated to race. Id. The court also found it "notabl[e]" that the harassment did not interfere with Brown's job performance in that "his promotion to lineman was unimpeded." Id. The court also found it irrelevant that co-workers had said Brown was being mistreated because of his race. RE27. Finally, the court held that even if the harassment were actionable, Progress Energy was not liable for it because the company had an anti-harassment policy and Brown failed to report most of the harassment. RE26-27. SUMMARY OF THE ARGUMENT The district court erred in granting summary judgment on Brown's failure- to-train claim. Contrary to the district court's reasoning, the denial of training itself - even when unconnected to the denial of promotional opportunities - constitutes an adverse action. But even if Brown had to show that the training adversely affected his promotional opportunities, a reasonable jury could find that he did because he had to transfer to get the training he needed for promotion and/or his promotion was delayed. The court also erred in concluding, as a matter of law, that Brown did not receive equal bucket time because he was the most senior apprentice; the evidence actually showed that Brown was the most junior apprentice, and Brown offered evidence from which a jury could conclude that the denial of training was because of his race. The court also erred in granting summary judgment on Brown's hostile work environment claim. Based on the totality of the circumstances, a jury could find that Brown reasonably viewed his workplace as hostile and abusive based on evidence that Savage called him a "nigger" behind his back on five to six occasions, including in conjunction with a threat to try and get him fired. While the court properly recognized these comments as "severe," the court erred in discounting their severity merely because the words were spoken behind Brown's back instead of to his face. Contrary to the court's finding, a reasonable jury could also find that Brown was denied training, forced to dig ditches, and passed over for using new trucks because of his race, and that this conduct contributed to the hostile work environment. Finally, the court erred in concluding as a matter of law that Progress Energy was not liable for any actionable harassment. An employer is liable for co-worker harassment where it had actual knowledge of the harassment but failed to take prompt remedial measures. Here, Brown testified that he complained several times to Harris about the mistreatment but that Harris did nothing, which establishes liability. The existence of an anti-harassment policy is not, contrary to the reasoning of the district court, sufficient to insulate an employer from liability. Nor is an employer shielded from liability simply by remediating one aspect of the hostile work environment. Instead, the question for a jury is whether the employer took steps to stop the harassment as a whole. Because a jury could find that Progress Energy failed to do this, this case should be remanded for trial. ARGUMENT The district court erred in granting summary judgment on Brown's claims under 42 U.S.C. § 1981, which protects an individual's right to be free from racial discrimination in the "making, performance, modification, enforcement, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship." This Court has recognized that Section 1981 has the same proof requirements and uses the same analytical framework as Title VII. Standard, 161 F.3d at 1330. In this case, the court erred by concluding as a matter of law that no reasonable jury could find for Brown on either his failure-to-train or hostile work environment claims. I. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON BROWN'S FAILURE-TO-TRAIN CLAIM. The district court erred in concluding as a matter of law that denying Brown bucket training did not constitute an adverse action because Brown received positive evaluations and a timely promotion. An adverse action is one that involves a "serious and material change in the terms, conditions, or privileges of employment." Davis v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001) (emphasis omitted). Several courts have recognized that the denial of training constitutes an adverse action - regardless of whether it affects the plaintiff's promotional opportunities - because training affects the terms, conditions, or privileges of employment. See, e.g., Thompson v. Potomac Elec. Power Co., 312 F.3d 645, 649-50 (4th Cir. 2002) (prima facie case of failure-to-train claim requires showing that the employee was denied training under circumstances giving rise to an inference of discrimination); Pafford v. Herman, 148 F.3d 658, 667 (7th Cir. 1998) (prima facie case of failure to train does not require a showing that the training was required for promotion); Lopez v. Metro. Life Ins., Co., 930 F.2d 157, 161 (2d Cir. 1991) (prima facie case of failure-to-train requires that the employer denied the plaintiff training it gave to similarly-situated non-protected employees). Therefore, the court erred in reasoning that Brown had failed to establish a prima facie case because the training did not impede his promotion or result in negative evaluations. This Court has suggested in an unpublished opinion that the denial of training is not an adverse action, however, unless it deprives a plaintiff of employment opportunities. See Mack v. St Mobile Aerospace Eng'g, 195 Fed. Appx. 829, 846 (11th Cir. July 31, 2006) (failure to give the plaintiff computer training was not an adverse action because it did not have "an adverse [e]ffect on his employment"). Because Mack is unpublished, however, it is not binding precedent. See 11th Cir. R. 36-2. The Commission therefore urges this Court to follow the Second, Fourth, and Seventh Circuits in holding that the failure to train is itself an adverse action, regardless of whether it adversely affects a plaintiff's promotional opportunities or other terms and conditions of employment. But even if this Court decides to follow Mack, this Court should reverse the district court's judgment because there was enough evidence for a reasonable jury to find that the denial of bucket training adversely affected Brown's promotional opportunities. It is undisputed that adequate bucket training was a prerequisite to being promoted from an apprentice to a lineman. Brown offered evidence, including his testimony and that of co-workers, that he was denied equal bucket training while he was on the Tarpon Springs crew and that he was forced to transfer in order to get the training he needed to qualify as a lineman. See, supra, at 8. Although Brown did not offer specific evidence of a white apprentice who was promoted more quickly than he was, such comparative evidence is not necessary. There is evidence the training period at Progress Energy was just thirty- six months and that it usually took an apprentice two to four years to become a lineman, but that it took Brown four and a half years to qualify as a lineman. See, supra, at 1, 8. Therefore, a reasonable jury could find that the denial of training constituted an adverse action because it either delayed Brown's promotion and/or because he was only promoted after he transferred to a new team to get the training he needed. The district court also erred in ruling as a matter of law that the other apprentices were not similarly situated because they were less experienced than Brown and that this was the reason they received more training than Brown. RE28, RE20. Langille testified that Brown was the "junior apprentice" and that, in any event, all of the apprentices were "pretty much considered at the same level." R.28(Langille Depo. 23, 24) (also stating that he was hired two weeks before Brown). Thus, a reasonable jury could easily reject the claim that Brown was denied bucket training because of his seniority and instead conclude - based on evidence of Savage's animus against African-Americans and Montenare's and Savage's disparate treatment of Brown - that Savage and Montenare denied Brown bucket training because of his race. II. THE DISTRICT COURT ERRED IN GRANTING SUMMARY JUDGMENT ON BROWN'S CLAIM OF A HOSTILE WORK ENVIRONMENT BASED ON CO-WORKER HARASSMENT. To establish a hostile work environment based on co-worker harassment, Brown had to demonstrate: (1) he belongs to a protected group; (2) he was subjected to unwelcome harassment; (3) the harassment was based on his race; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and thus create a discriminatorily abusive work environment; and (5) Progress Energy is liable for that harassment because it had actual or constructive knowledge of it but failed to take prompt remedial action. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275-78 (11th Cir. 2002). Here, the district court seemed to accept that Brown had established the first two prongs but concluded that he had not established the remaining prongs. In reaching this conclusion, the court erred by disaggregating the hostile work environment, discounting the severity of the racial slurs because they were infrequent and said behind Brown's back, and excluding the other acts of harassment because they were not based on race. See Harris v. Forklift Systems, 510 U.S. 17, 23 (1993) ("[W]hether an environment is 'hostile' or 'abusive' can be determined only by looking at all the circumstances."); Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir. 1999) ("[C]ourts should examine the conduct in context, not as isolated acts, and . . . . under the totality of the circumstances."). Taken as a whole, the harassment was more than sufficient for a reasonable jury to find it objectively hostile and abusive, and that it was race-based. As the district observed, relevant factors in determining whether harassment is objectively hostile or abusive may include: (1) its frequency; (2) its severity; (3) whether it is physically threatening or humiliating, or a mere offensive utterance; and (4) whether it unreasonably interferes with the employee's job performance. Harris, 510 U.S. at 23. Here, a jury could find that Savage's racial slurs - including a threat to do what he could to "get that nigger fired" - were sufficiently severe, humiliating, and threatening that a reasonable person in Brown's shoes would find them objectively hostile or abusive, especially because Savage was responsible for training Brown. See generally Spriggs v. Diamond Auto Glass, 242 F.3d 179, 185 (4th Cir. 2001) ("Far more than a 'mere offensive utterance,' the word 'nigger' is pure anathema to African Americans."); Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual § 15-VII (2006) (being called "nigger" even a single time can create a hostile work environment), available at 2006 WL 4673430. While Brown only heard about the comments secondhand, a jury could nevertheless find that they were relevant to Brown's reasonable perception of a hostile work environment. See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997) ("[T]he fact that a plaintiff learns second-hand of a racially derogatory comment or joke by a fellow employee or supervisor also can impact the work environment."); see also Mack, 195 Fed. Appx. at 837 (reversing summary judgment where the district court dismissed much of the racial harassment as being merely "second-hand" and therefore having little impact on the plaintiffs). In fact, a reasonable jury could find that the comments were particularly humiliating because Savage called Brown a "nigger" in front of Brown's peers, who subsequently conveyed this to Brown. A reasonable jury could also find that Hatfield's comments about Brown liking to eat chicken were humiliating and contributed to the hostile work environment because they were said in front of the other linemen, who laughed. Additionally, although Savage's use of the terms "spic" and "wetback" were not directed at Brown or African- Americans, a jury could find that hearing these slurs reasonably made Brown perceive the egregious racial slurs that were directed at him as creating a hostile work environment. See Schwapp, 118 F.3d at 112 (racial slurs about other minorities could make the plaintiff reasonably perceive other incidents he experienced as hostile). In concluding that being called "nigger" five to six times by a co-worker is not actionable, the district court erroneously relied on three cases involving slurs: Barrow v. Ga. Pac. Corp., 144 Fed. Appx. 54 (11th Cir. Aug. 12, 2005), Harrington v. Disney Reg'l Entm't, Inc., 276 Fed. Appx. 863 (11th Cir. Oct. 19, 2007), and McCann v. Tilliman, 526 F.3d 1370 (11th Cir. 2008). This Court did hold in Barrow that there was no hostile work environment where the plaintiff was called "nigger" three times in a year, was subjected to other racial slurs, and saw racial graffiti and a noose, but because Barrow is an unpublished decision, neither the district court nor this Court is bound by it. See 11th Cir. R. 36-2. In any event, Barrow is distinguishable because in this case there is additional evidence of significant, race-based harassment, including the denial of training, being forced to dig ditches while white co-workers watched, and having less senior white employees be assigned the use of new trucks. Similarly, while the district court relied on Harrington for the proposition that "ghetto" is not a severe racial slur, RE23, Harrington is unpublished and the allegations in this case are not that Savage called Brown "ghetto" but "nigger" and "fucking nigger," which are undeniably severe racist slurs. Finally, while this Court held in McCann held that there was no hostile work environment where the plaintiff alleged that she was called "girl" and once heard men called "boys" and was told that a supervisor called someone a "nigger bitch" and referred to the "nigger vote," the facts are different here. In McCann the only slur about the plaintiff was "girl," whereas in this case Savage referred to Brown as "nigger" and "fucking nigger," which are clearly much more egregious and offensive racial slurs than "girl." Thus, McCann teaches that when the only racial slur directed towards a plaintiff is not particularly egregious, hearing someone called "boy" on one occasion and that a supervisor twice used the word "nigger" about others does not create a hostile work environment. McCann is also distinguishable from this case because unlike in that case, in this case there are other allegations of race-based conduct that contributed to the hostile work environment. See McCann, 526 F.3d at 1377. That other evidence of harassment included being forced to dig holes while the other apprentices watched, being denied bucket training given to other apprentices, and being refused the use of the new trucks. The district court erroneously discounted this harassment, however, on the grounds that "there is no evidence that any of [it] was based on race." RE26. To the extent the district court suggested that only harassment that is explicitly racial in nature is actionable, this reasoning was clearly erroneous. As the Supreme Court has said, the critical question in a harassment case is "whether members of one [protected group] are exposed to disadvantageous terms or conditions of employment to which members [outside the protected group] are not exposed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998) (internal quotation marks and citation omitted); see also Section 15, Race & Color Discrimination, 2 EEOC Compliance Manual § 15-7 (2006) ("The conduct need not be explicitly racial in nature to violate Title VII's prohibition against race discrimination" so long as the conduct is race- based.), available at 2006 WL 467340. Thus, to survive summary judgment Brown needed to show only that a jury could find that he suffered harassment that disadvantaged the terms and conditions of his employment, and that the harassment was based on his race; he did not have to show that the harassment itself was explicitly racial in nature. Here, Brown met that burden. Based on evidence that Savage called Brown a "nigger" and "fucking nigger" and threatened to get him fired, a reasonable jury could easily find that all of Savage's conduct towards Brown was motivated by Brown's race. See EEOC v. Sunbelt Rentals, 521 F.3d 306, 317-18 (4th Cir. 2008) (jury could find that co-worker harassment lacking a religious nexus, which included unplugging the plaintiff's computer and hiding his timecard, was based on animus towards the plaintiff's religion where the same co-workers also perpetrated explicitly religious harassment). A jury could also conclude that the harassment by Savage and Montenare was because of Brown's race based on Brown's testimony that Harris agreed with Brown that he was being mistreated because of his race, Tim's testimony that Savage spoke in a "dismissive, demeaning manner" to him but not to other white employees, Brown's testimony that Savage singled him out from all the white apprentices and linemen for mistreatment, evidence that Poole's assignment of trucks was race-based instead of seniority-based, and Rivera's and Langille's testimony that Savage singled Brown out for mistreatment, denied him training, and reported him for a trumped-up safety violation because of his race. See, supra, at 1-10. Finally, contrary to the district court's reasoning, a jury could rely on co-workers' statements to Brown that he was mistreated because of his race to conclude that Brown's mistreatment was, in fact, race-based.<7> See, e.g., Hernandez v. City of Vancouver, 277 Fed. Appx. 666, 670 (9th Cir. April 14, 2008) (co-workers' testimony that the plaintiff was discriminated against based on race was probative of whether his transfer was race-based or performance-based). The district court also erred when it reasoned that digging trenches and the denial of training were not race-based because, respectively, other linemen dug trenches and because Brown was the most senior apprentice. RE26. While Brown testified that the linemen did dig sometimes, he clearly testified that he was forced to dig holes and trenches more often than the other apprentices and that Montenare would dig with other apprentices but not with Brown. See, supra, at 5-6. And, as discussed before, the evidence in the record shows that Brown was the most junior apprentice. Id. Thus, a reasonable jury could easily conclude that Brown was denied bucket time because of his race, not his seniority. Similarly, the court erred by concluding that evidence that new trucks were assigned to whites with less seniority did not contribute to the hostile work environment because there was no company policy about the distribution of trucks and because favoritism is permissible under Title VII. RE26. As to the first point, there need not be a company policy for a reasonable jury to conclude that the truck assignments were race-based. In any event, Brown offered evidence that Progress Energy had a practice of doing everything by seniority, including assigning trucks, which would allow a reasonable jury to conclude that Poole's decision to assign the newer trucks to whites with less seniority was race-based. See, supra, at 9. And although the district court properly cited Platner v. Cash & Thomas Contractors, Inc., 908 F.2d 902, 905 (11th Cir. 1990), as stating that "favoritism" is not a per se violation of Title VII, nothing in Platner says that favoritism towards friends that is based on race cannot violate Title VII. Here, Brown testified that Poole's truck assignments were based on friendship and race, and a jury could certainly conclude that Poole discriminated based on race when he refused to assign trucks based on seniority and instead gave new trucks to his white friends, who were, not coincidentally, his fishing buddies. See, supra, at 9-10. The court also erred by overlooking additional evidence in the record suggesting that Savage's and Montenare's harassment of Brown was quite frequent and took place continuously over the course of several months. Brown testified that "whenever" Savage saw him he "singled [him] out" for a demeaning comment and Montenare "always gave [him] attitude" because he was black. R.27(Brown Depo. 82, 99-100) Similarly, Langille testified that Savage singled out Brown and rode him harder than the other apprentices, and he testified about an occasion when Montenare ordered Brown to climb a "back lot" pole out of spite and said that "little things like that [ ] were ongoing" for "months and months . . . .[I]t didn't go unseen . . . that [] Brown was definitely" singled out for mistreatment. R.28(Langille Depo. 26) Langille's testimony about Savage's and Montenare's mistreatment of Brown dovetails with Brown's own testimony about when Montenare screamed at him about not driving through a red light and when Savage reported him in April 2003 and November 2006 for trumped-up safety violations. A reasonable jury could therefore find that the conduct, considered as a whole, was frequent. A jury could also find that Brown reasonably found these "race-neutral" incidents were severe, given his knowledge that Savage was referring to him as a "nigger" behind his back. A jury could also find that the severity of the harassment, and its humiliation, was increased by having Brown's co-workers and supervisor tell him that the disparate treatment was indeed based on his race. Although the court suggested that the harassment was not actionable because it did not interfere with Brown's work performance, RE26, a plaintiff need not show this in order to establish a hostile work environment. See Harris, 510 U.S. at 23 (stating that "no single factor is required"). In any event, a jury could easily find that the harassment did interfere with Brown's work performance since he testified that he was forced to transfer crews in order to obtain proper training and to get away from Savage, Montenare, and Hatfield. R.27(Brown Depo. 76) Additionally, a jury could find that Savage's harassment interfered with Brown's work performance when he reported Brown on November 18, 2006, for a trumped- up safety violation that resulted in a one-day suspension without pay, although he later was reimbursed, and received a written reprimand. See, supra, at 6-9. Thus, looking at the totality of the circumstances, a reasonable jury could easily conclude that Brown reasonably perceived his environment as hostile and abusive. See Harris, 510 U.S. at 22 ("A discriminatorily abusive work environment, even one that does not seriously affect employees' psychological well-being, can and often will detract from employees' job performance, discourage employees from remaining on the job, or keep them from advancing in their careers."). A reasonable jury could also find that Progress Energy is liable for the harassment because it had actual knowledge of it but failed to take prompt remedial action. Miller, 277 F.3d at 1278 (articulating the standard for co-worker harassment). Brown testified that he complained several times to Harris, who was designated under the company's policy to receive complaints and was required to report them, but that Harris never did anything about it. Id. ("Actual notice is established by proof that management knew of the harassment."); Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) (employer has actual knowledge where employee complains to person designated by policy to receive complaints). In fact, contrary to reporting the harassment, Harris told Brown that he just needed to learn to "get along," and he even agreed that the harassment was due to Brown's race, signaling to Brown that tolerating race-based harassment was just part of the job at Progress Energy. While the district court suggested that Progress Energy could not be liable for the harassment because it had an anti- discrimination policy, that is not the standard of liability for co-worker harassment, and, in any event, this Court has recognized that an ineffective policy does not insulate an employer from liability when it knew of harassment but failed to act. See, e.g., Miller, 277 F.3d at 1280 ("[A] policy must be found ineffective when company practice indicates a tolerance towards harassment or discrimination"); Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422-23 (11th Cir. 1999) (employer could be vicariously liable, although it had policy and took prompt remedial action once the plaintiff complained to HR, because factual issue existed as to whether the defendant had prior notice but failed to act). Finally, the court erred in concluding as a matter of law that Progress Energy's "prompt[] and thorough[]" investigation of Savage's actions on November 18, 2006, "absolved Defendant of any vicarious liability." RE23. Even if Progress Energy's investigation could be considered "remediation" of Brown's complaint, Progress Energy could still be liable for the harassment. As the Supreme Court explained in National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 117-18 (2002), because individual acts of harassment collectively create a hostile work environment, which is a single unlawful employment practice, they cannot be separated out "for the purposes of timely filing and liability." Thus, because an employer's liability is based not on individual acts but on the unlawful employment practice they cumulatively create, an employer's remediation of individual acts does not absolve an employer of liability for the harassment as a whole. See Phelan v. Cook County, 463 F.3d 773, 785 (7th Cir. 2006) (stating that the critical question is whether the employer "took steps to stop the harassing activity as a whole," and therefore holding that the employer's remediation of one aspect of the hostile work environment "did not make irrelevant the harassment that occurred earlier") (emphasis added). Here, a reasonable jury could find that Progress Energy never took any steps to stop the harassment as a whole. Therefore, the court erred in concluding that Progress Energy could not be liable for the harassment because Progress Energy investigated the November 18, 2006, incident. See also Mack, 195 Fed. Appx. at 836 (reversing summary judgment on racially hostile work environment claim although the employer disciplined an acting supervisor and a co-worker for their racist slurs). CONCLUSION For the reasons discussed above, this Court should reverse the district court's grant of summary judgment to Progress Energy and remand this case for trial. Respectfully submitted, JAMES L. LEE Deputy General Counsel LORRAINE C. DAVIS Acting Associate General Counsel CAROLYN L. WHEELER Assistant General Counsel ________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the type-volume requirements set forth in Federal Rules of Appellate Procedure Rule 32(a)(7)(B). This brief contains 6,992 words, from the Statement of Interest through the Conclusion, as determined by the Microsoft Word 2003 word processing program, with 14-point proportionally spaced type for text and 14-point proportionally spaced type for footnotes. ________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov CERTIFICATE OF SERVICE I hereby certify that one original and six copies of the foregoing brief were sent this 7th day of May, 2009, by FedEx Next Day Air, postage prepaid, to the Clerk of this Court. I further certify that one copy of the foregoing brief was sent this same day, by FedEx Next Day Air, postage prepaid, to the following counsel of record for Plaintiff-Appellant and Defendant-Appellee, respectively: Counsel for Plaintiff-Appellant Roderick O. Ford RODERICK O. FORD PLLC 220 E. Madison St., Ste. 1207 Tampa, FL 33602 (813) 223-1200 Counsel for Defendant-Appellee Thomas M. Gonzalez THOMPSON, SIZEMORE, GONZALEZ, & HEARING, P.A. 201 N. Franklin St., Ste 1600 Tampa, FL 33601 (813) 273-0050 _________________________ ANNE NOEL OCCHIALINO Attorney EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of General Counsel 131 M St. NE, 5th Fl. Washington, D.C. 20507 (202) 663-4724 Annenoel.Occhialino@EEOC.gov *********************************************************************** <> <1> The Commission expresses no opinion on any other issues presented in this appeal. <2> Because this case was decided on summary judgment, the Commission has presented the facts in the light most favorable to Brown, the non-moving party. <3> Because the district court assumed that Langille and Rivera contemporaneously told Brown about Savage's comments, and that these incidents occurred between 2002 and 2006, RE17, our analysis proceeds on that assumption. The record suggests, however, that Rivera heard Savage's "fucking nigger" comment in February 2007. <4> Langille also testified that he transferred from Tarpon Springs to Seven Springs to get additional training because Savage, in general, did not allow the apprentices much bucket time. R.14, Ex.2(Langille Aff. ¶ 7) But Langille nevertheless testified that "[h]aving said that, I did observe the other apprentices receive a lot more bucket time than [] Brown received." Id. (emphasis added). <5> Evidently there was a lag of four months between when Brown "qualified" as a lineman and when there was an open lineman position he could fill. R.27(Brown Depo. 7-8) <6> The district court assumed that this event occurred between 2002 and 2006 and considered it in its analysis of Brown's hostile work environment claim. Accordingly, we do the same. <7> Like the district court, we assume that these statements are otherwise admissible.